Scalia’s 1990 opinion influences religious freedom judicial battles
February 16, 2016 12:27 AM
Chris Greenberg/Associated Press
It’s unclear whether Supreme Court Justice Antonin Scalia’s death will change the outcome on challenges to the Affordable Care Act.
By Peter Smith / Pittsburgh Post-Gazette
Faith-based groups from Western Pennsylvania had been getting primed for a U.S. Supreme Court showdown next month on the parts of Obamacare that they say violate their religious rights.
Now these cases, set for oral arguments on March 23, are among the many things whose fate has been thrown into doubt by the weekend death of Justice Antonin Scalia.
It’s not clear if Justice Scalia’s death will change the outcome on challenges to the Affordable Care Act by the Roman Catholic dioceses of Pittsburgh and Erie and the Presbyterian-affiliated Geneva College of Beaver Falls. These and other plaintiffs are challenging a mandate under which their employees would get contraception coverage.
But even so, the late justice’s fingerprints are already all over these and other challenges.
If you read closely the legal briefs of those challenging the law, you’ll find that they don’t base their claims where you’d expect to find a religious-liberty defense — on the First Amendment to the U.S. Constitution. Instead, the challengers are largely banking on a federal statue, the 1993 Religious Freedom Restoration Act.
Credit or blame for that goes to Justice Scalia.
Although a supporter of such things as prayer in government meetings, the justice actually undercut the ability of individuals or groups to claim a constitutional protection to government encroachment on religious practices. Although they can still claim rights under federal statutes, such laws can be undone as easily as passed.
“When history is written, Justice Scalia will be seen as the justice to do the most to narrow protection for religious freedom under the First Amendment,” said Charles Haynes, founding director of the Religious Freedom Center of the Newseum Institute in Washington.
It all goes back a quarter-century.
Justice Scalia wrote the majority opinion in a 1990 case, saying the state of Oregon didn’t need to accommodate the Native American Church’s sacramental use of peyote, an illegal hallucinogenic drug.
In so doing, Justice Scalia overturned a long-standing Supreme Court precedent that said that if a law conflicted with a person’s constitutional right to religious expression, the law had to undergo “strict scrutiny” to demonstrate there was a compelling government interest and that any conflicts with religious liberty were the least restrictive possible.
Justice Scalia cited the growing religious diversity of the United States and said that there’s no way government could let “each conscience [be] a law unto itself.”
“Any society adopting such a system would be courting anarchy,” he wrote, “but that danger increases in direct proportion to the society diversity of religious beliefs.”
He had a solution: If Congress or a state legislature wanted to exempt religious groups from laws, they could pass legislation to that effect.
Mr. Haynes said that solution “means little for particularly minority groups” because they lack the political clout to get protection for unfamiliar and possibly unpopular practices.
Nicholas Cafardi, a professor at the Duquesne University School of Law, recalled attending a conference at which Mr. Scalia adamantly defended the decision.
Justice Scalia, he recalled, asked: “Who would you rather trust, a group of unelected judges or a group of elected representatives to protect your First Amendment rights?”
Vic Walczak, legal director of the American Civil Liberties Union of Pennsylvania, which supports the Obamacare provisions, said he found the 1990 ruling “one of the most confounding decisions to come from Justice Scalia, because it’s really an anti-religious-liberty argument.”
Whether or not Justice Scalia imagined at the time that his fellow conservative Christians would become an embattled religious minority, his landmark decision has reverberated in today’s debates over the Affordable Care Act and gay marriage.
A broad coalition of religious-freedom advocates persuaded Congress in 1993 to pass a Religious Freedom Restoration Act, which revived the “strict scrutiny” standard.
On that basis, the Hobby Lobby corporation won a victory over the Obamacare contraception rules in a 2014 Supreme Court case.
“For many religious conservatives, a light bulb went on,” said Mr. Haynes in that case. They realized they “need the exemption and the accommodation” of religious minorities.
But state-level religious-freedom laws have struggled.
Indiana lawmakers partly retreated on such a law last year amid a national storm of controversy. Opponents saw it as a pretext to allow bakers and other vendors to refuse to work gay weddings on religious grounds.
At issue in the current Obamacare case is a provision that faith-based charities and schools can submit a form if they object to providing some or all contraceptives.
The insurer would then directly provide customers the contraceptives at no cost to their employers. But the religious groups say even signing such a form makes them complicit in an evil.
In the 5-4 Hobby Lobby decision, Justice Anthony Kennedy provided the swing vote — but partly because the government hadn’t allowed private for-profit corporations the same opt-out form that the nonprofit faith-based groups are objecting to.
That’s a clue that Justice Kennedy might actually uphold the law in this case, since faith-based charities have the opt-out option. But if Justice Kennedy votes against the law, a 4-4 tie would leave things as muddled.
Several appeals courts, including the Third Circuit covering Pennsylvania, have upheld the contraception provision. But another, in Missouri, struck it down.
“The law will be different based on where you live, and that doesn’t make sense,” Mr. Cafardi said.
“The fact that it would sow confusion may cause the court to order re-argument” of the case once it gets a ninth justice, Mr. Walczak said.
Peter Smith: firstname.lastname@example.org or 412-263-1416; Twitter @PG_PeterSmith.
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